Chavez v. Davey

ORDER SUMMARILY DISMISSING PETITION AND DENYING
CERTIFICATE OF APPEALABILITY

S.
JAMES OTERO, UNITED STATES DISTRICT JUDGE.

On or
about October 19, 2017, Petitioner James D. Chavez
(“petitioner”), a California prisoner proceeding
pro se, filed a Petition for Writ of Habeas Corpus pursuant
to 28 U.S.C. § 2254 (the “petition”).
Therein, petitioner asserts a single claim - that the
California Supreme Court's holding in People v.
Franklin, 63 Cal.4th 1053 (2016) retroactively entitles
him to create a record that will enable California Board of
Parole Hearings (“BPH”) to consider “the
hallmark features of youth which led to his criminal
activity, ultimate conviction, and sentence to state
prison.” (Pet at 3.) Because the Court is able to
conclude from the face of the petition that petitioner is not
entitled to habeas relief, summary dismissal is
appropriate.[1]See Rule 4 of the Rules Governing
Section 2254 Cases in United States District Courts
(hereinafter “Rule 4”); McFarland v.
Scott, 512 U.S. 849, 856 (1994) (finding that Rule 4
permits dismissal of a petition “that appears legally
insufficient on its face”).

In
Franklin, the court considered several challenges to
a juvenile defendant's sentence in light of two
California statutes, Cal. Penal Code §§ 3051(b) and
4801(c) (respectively, “section 3051(b)” and
“section 4801(c)”), which govern aspects of
parole eligibility for California inmates who committed their
crime of imprisonment prior to reaching age twenty-three.
See generally Franklin, 63 Cal.4th at 276-87.
Section 4801(c), in particular, requires that the BPH
“give great weight to the diminished culpability of
juveniles . . ., the hallmark features of youth, and any
subsequent growth and increased maturity of the
prisoner.” Although it affirmed the defendant's
sentence, the Franklin court ultimately remanded the
case to ensure that the defendant, who was sentenced before
the effective date of the current Cal. Penal Code
§§ 3051 and 4801(c), was afforded the opportunity
to make a record that would allow the BPH to effectively
consider the factors set forth in section 4801(c).
Franklin, 63 Cal.4th at 286-87.

Federal
habeas relief is unavailable to a petitioner whose claim
“does not fall within ‘core of habeas,
'” i.e. where success on the claim “would not
necessarily lead to [the petitioner's] immediate or
earlier release from confinement.” Nettles v.
Grounds, 830 F.3d 922, 935 (9th Cir. 2016) (en banc)
(quoting Skinner v. Switzer, 562 U.S. 521, 535 n.13
(2011)). Here, even if petitioner were to succeed on his
claim, Franklin entitles him to no more than an
opportunity to create a record that would enable the BPH to
effectively consider the factors set forth in section
4081(c).[2] Moreover, while the creation of a record
detailing petitioner's youthful, mitigating
characteristics would likely increase his chances at parole,
he would not be guaranteed release, as the BPH considers
numerous factors unrelated to age when determining parole
suitability. See Cal. Code Regs., tit. 15, §
2281 (2016) (enumerating circumstances showing suitability or
unsuitability including social history, criminal history,
motive for crime, etc.). In sum, because any relief would not
necessarily result in petitioner's immediate or
accelerated release from prison, his claim is not cognizable
on federal habeas. See Nettles, 830 F.3d at 934-35
(holding that petitioner's claim was non-cognizable
because expungement of prison rules violation would not
necessarily result in earlier release date since BPH
considers other factors when determining suitability).

Rather
than dismissing the petition, the Court may, with
petitioner's consent, construe the petition as a
complaint filed pursuant to 42 U.S.C. § 1983. See
Nettles, 830 F.3d at 935. However, the Court declines to
do so in this instance because it is entirely unclear which
federal constitutional right petitioner asserts
California's courts violated. Moreover, the allegations
in the petition are unsubstantiated and lack the specificity
required to state a claim in a § 1983 action.
See Fed. R. Civ. P. 8(a)(2); Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (“[A] complaint
must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007))).

For the
foregoing reasons, the petition is DISMISSED without
prejudice. A certificate of appealability is DENIED.

Let
judgment be entered accordingly.

IT IS
SO ORDERED.

FREDERICK F. MUMM, United States Magistrate Judge.

---------

Notes:

[1] The Court takes judicial notice of
California Supreme Court records (found at
http://appellatecases.courtinfo.ca.gov/index.html)
which demonstrate that petitioner has not filed a habeas
petition in that court since its decision in
Franklin. Thus, it appears that petitioner has not
exhausted his state court remedies with respect to his lone
claim. However, the Court need not consider whether
petitioner's claim is exhausted because it is not
cognizable on federal habeas, as discussed herein. See
Gutierrez v. Griggs, 695 F.3d 1195, 1197-98 (9th Cir.
1983) (holding that district court need not consider
exhaustion where claim is plainly non-cognizable); see
also Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir.
2005) (finding no need to consider exhaustion requirement
where petitioner “does not raise even a colorable
federal claim”).

[2] The Court expressly declines to
consider petitioner's claim any further than discussed
herein, as the Court is doubtful that petitioner's claim
even alleges ...

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